Scalia and his family were Italians who, like so many others, had crossed the Atlantic and made good. But Scalia had also done something far more monumental. He had just secured a lifetime appointment to the highest court in the country and become a force who would shape U.S. history. Scalia, Reagan and several senators were eager to make regular mention of Scalia’s heritage, the historic nature of his nomination and appointment and so on. As Public Radio International reported just after Scalia’s death in February, one senator essentially told Scalia and all those assembled at Scalia’s confirmation hearing that he had an aunt who once had a babysitter who had an Italian family member.
However, once Scalia joined the court, he was remarkably consistent in ruling against women, people of color and others who found themselves in the center of a legal case in large part because of who they are and the experiences that all too often come with that. Their identities shaped their legal needs in cases involving everything from unfair pay to unjust criminal prosecutions. And that, of course, is also why identity has always played a role in American politics. But in the 30 years since Reagan took pride in picking the first Italian American nominee for the Supreme Court, the conservative view of just about any and all expressions of or reference to identity in public life has grown more than dim.
Doubt that? Let’s think back to 2009.
On May 26, 2009, President Obama was still a rather newly minted president when he nominated Sonia Sotomayor after Justice David Souter announced his retirement. Sotomayor was a graduate of Princeton and Yale and had a long legal career and all the standard distinctions typical of a Supreme Court justice.
But just two days later, CNN reported that Sotomayor's confirmation might “hinge” on a single line in a 4,000-word speech she delivered in 2001 at the University of California-Berkeley. In the line in question, Sotomayor, who is Puerto Rican, mentioned that Latina judges bring the wisdom of their experiences to their work.
It was, of course, taken out of context and then talked and written about repeatedly as a claim that Latinas make better judges than white men. Several members of the Senate Judiciary Committee said publicly they intended to make inquires into Sotomayor’s ability to decide cases impartially and according to the law, rather than personal feelings.
The so-called “wise Latina” issue was raised during her confirmation hearings. Sotomayor said they were intended to inspire young Latinos, not to offend, and she described them as words that did not really work or serve their intended purpose. In the end, she was confirmed.
Then, there’s what happened in July 2013.
President Obama nominated Tom Perez to serve as labor secretary — a Cabinet position requiring Senate approval. Perez, who is the son of two Dominican immigrants and holds multiple degrees from Brown and Harvard, had served in another role requiring Senate confirmation. Until the latter nomination, Perez was the Justice Department’s assistant attorney general for civil rights. He brought and won some groundbreaking cases related to racial discrimination in mortgage lending and school discipline. But when it was time for the Senate to approve Perez for a new job, questions and outright criticism were raised about his work on immigrant rights matters. One conservative columnist claimed he would be the secretary of illegal labor.
Perez was ultimately confirmed on a strictly party-line vote — a first for a Cabinet official in the nation’s history.
Then things got really ugly. When the Senate was asked to confirm the NAACP Legal Defense Fund’s one-time acting president, associate director and director of litigation, Debo Adegbile, as Perez’s replacement at the helm of the Justice Department’s Civil Rights Division, Adegbile’s nomination was scuttled on a procedural vote — meaning early on in the process — because police groups, most Republicans and some Democratic senators objected to his work on a death penalty case involving a man convicted of killing a police officer.
At the time, President Obama made his displeasure clear:
“The Senate's failure to confirm Debo Adegbile to head the Civil Rights Division at the Department of Justice is a travesty based on wildly unfair character attacks against a good and qualified public servant,” Obama said, later adding: “As a lawyer, Mr. Adegbile has played by the rules. And now, Washington politics have used the rules against him.”
Adegbile ultimately withdrew his name from consideration.
In January, something similar happened to Georgia Judge Dax Lopez’s nomination to the federal bench. Sen. David Perdue (R-Ga.) refused to give his approval to Lopez’s nomination, saying he was concerned about Lopez’s involvement in “divisive” politics -- in particular, Lopez’s involvement with the Georgia Association of Latino Elected Officials. Lopez is both Latino and Jewish. The group, known as GALEO, generally works to expand the number of Latino elected officials serving in public office but also opposed state-level immigration policies in Georgia and supported a federal immigration reform bill that included a path to citizenship for the undocumented. Perdue’s decision meant the Senate Judiciary Committee would not even consider Lopez’s nomination.
The net result: Obama's more recent nominees — Attorney General Loretta Lynch and now-Supreme Court nominee Merrick Garland — have been tough-on-crime centrists with little in the way of work on key social justice issues. That is work that often involves the kind of identity politics that many senators now find unacceptable for federal officials.
That’s a pattern that could leave some people drawn to social justice-related legal work concerned about what that work may do to their long-term careers.